MEDICAL ADVOCATES FOR HEALTHY AIR v. WHITMAN

United States District Court, Northern District of California, San Francisco Division

May 15, 2003

MEDICAL ADVOCATES FOR HEALTHY AIR, SIERRA CLUB, AND LATINO ISSUES FORUM, PLAINTIFFS,v.CHRISTINE TODD WHITMAN, IN HER OFFICIAL CONSENT DECREE CAPACITY AS ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND WAYNE NASTRI, IN HIS OFFICIAL CAPACITY AS REGIONAL ADMINISTRATOR FOR REGION IX OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge

CONSENT DECREE

WHEREAS, plaintiffs Medical Advocates for Healthy Air, Sierra Club, and Latino Issues Forum (collectively referred to as "Medical Advocates"), filed their Complaint in this matter on October 22, 2002 against defendants, Christine Todd Whitman, Administrator, United States Environmental Protection Agency, and Wayne Nastri, Regional Administrator, Region IX (collectively referred to as "the Administrator" or "EPA");

WHEREAS, the Complaint involves a claim concerning EPA's alleged obligation to act pursuant to section 110(c) of the Clean Air Act ("CAA" or "the Act"), 42 U.S.C. § 7410(c), to promulgate a Federal Implementation Plan ("FIP") to control particulate matter emissions ("PM-10") in California's San Joaquin Valley Serious Area PM-10 Planning Area ("San Joaquin Valley");

WHEREAS, the Court on March 5, 2003 granted Medical Advocates' motion for summary judgment on liability, finding EPA has a "duty to promulgate a [moderate area PM-10] FIP for the San Joaquin Valley as soon as possible;"

WHEREAS, the parties agree that this Court has jurisdiction to enter the Consent Decree;

WHEREAS, the parties have agreed to enter this Consent Decree without any admission or adjudication of any other issue of fact, law, liability or remedy;

WHEREAS, it is in the interest of the public, the parties, and judicial economy to resolve this claim without further litigation;

WHEREAS, the Court finds and determines that this settlement represents a just, fair, adequate and equitable resolution of the claim resolved herein;

NOW THEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that:

1. The Administrator or her delegatee shall sign no later than March 31, 2004, a notice for publication in the Federal Register proposing a FLP to implement the requirements of Clean Air Act section 189(b)(1)(B), 42 U.S.C. § 7513a(b)(1)(B), for the San Joaquin Valley.

2. The Administrator or her delegatee shall sign no later than July 31, 2004, a notice for publication in the Federal Register taking final action to adopt a FIP to implement the requirements of Clean Air Act section 189(b)(1)(B), 42 U.S.C. § 7513a(b)(1)(B), for the San Joaquin Valley.

3. EPA's obligation to promulgate the FIP described in paragraph 2 shall be relieved as to any portions of the plan for which the Administrator or her delegatee signs a notice of final rulemaking by July 31, 2004 approving state implementation plan ("SIP") revisions for the San Joaquin Valley pursuant to Clean Air Act sections 110(k)(3) and 189(b)(1)(B), 42 U.S.C. § 7410(k)(3), 7313a(b)(1)(B).

4. Any provision of this Consent Decree may be modified if the party seeking the modification demonstrates that such modification is consistent with law and in the public interest, either (a) by written consent of the parties and subsequent notice to the Court, or (b) by the Court following motion of any party to this Consent Decree.

5. Medical Advocates' claims shall be dismissed with prejudice and this Consent Decree shall terminate when the notice signed by the Administrator or her delegatee pursuant to paragraph 2 of this Decree has been published in the Federal Register, or the obligation to do so has been relieved by approval of a SIP as provided in paragraph 3, and any claim for costs and attorneys fees pursuant to paragraph 9 has been resolved. Within 30 days of the last of these events, Medical Advocates shall file with the Court a motion to dismiss its complaint with prejudice. If Medical Advocates fails to do so, EPA may file such a motion and Medical Advocates shall not oppose the dismissal of this action with prejudice.

6. Nothing in the terms of this Decree shall be construed either (a) to confer upon this Court jurisdiction to review any issues that are within the exclusive jurisdiction of the United States Court of Appeals under Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1), or (b) to waive, limit or modify any remedies or rights to seek judicial review Medical Advocates may have under this provision.

7. Except as provided herein, nothing in this Decree shall be construed to limit or modify any discretion accorded EPA by the Clean Air Act or by general principles of administrative law in taking the actions that are subject to this Decree.

8. The commitments in paragraphs 1 and 2 are subject to the availability of appropriated funds. No provision of this Decree shall be interpreted as or constitute a commitment or requirement that EPA obligate funds in contravention of the Anti-Deficiency Act, 31 U.S.C. § 1341 or any other applicable law or regulation.

9. Medical Advocates reserves any right it may have to seek reasonable costs of litigation, including attorneys' fees, pursuant to Clean Air Act § 304(d), 42 U.S.C. § 7604(d). For the limited purpose of settling the attorneys' fees and costs involved in litigating and settling this case, EPA agrees that Medical Advocates is the prevailing party and an award of attorneys' fees and costs in this action is appropriate. EPA reserves the right to object to the amount of the award of any such fees and costs.

10. The parties agree and acknowledge that before this Consent Decree can be finalized and entered by the Court, EPA must provide notice in the Federal Register and an opportunity for comment pursuant to Clean Air Act § 113(g), 42 U.S.C. § 7413(g). EPA will expeditiously prepare such notice and forward it to the Office of the Federal Register. After this Consent Decree has undergone an opportunity for notice and comment, the Administrator and/or Attorney General, as appropriate, shall promptly consider any such written comments in determining whether to withdraw or withhold consent to this Consent Decree, in accordance with § 113(g) of the Clean Air Act.

11. Subject to paragraph 10, the undersigned representatives of each party certify that they are fully authorized by the party or parties they represent to consent to the Court's entry of the terms and conditions of this Decree.

This Decree may be signed in counterparts. The UNDERSIGNED PARTIES enter into this Decree and submit it to this Court.

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